Why Is American Government Based on the Weakest Form of Social Control?

-- By KatySkaggs - 16 Feb 2012

Law is the Weakest Form of Social Control

Of the few things that seem to be in basic agreement among and between our class and professor, the most fundamental seems to be that we must question most things that seem given, because humans and human systems are, to varying degrees, all full of—let’s say mostly unconscious rationalizations; another idea that doesn’t stir up too much protest is that law is the weakest form of social control. Structurally, that defines all other forms of social control as more effective. Of these, religion was one of the most effective and widely used for thousands of years; its effectiveness was found in utilization of the threat and promise of theological salvation by a higher spiritual authority, enforced by a temporal earthly authority, and backed up by the social approbation or approval of our social peer group, who long-ago, were generally clustered geographically with others of the same faith. And, especially before the American Revolution, governments embodied the principle cujus region, ejus religio (“whose realm, his religion”); essentially, tying governmental law to the stronger social control of religious authority enhanced overall social control.

Functionalism Guided the Exclusion of Religion from the New Government of the United States

In considering their assignment to fix the Articles of Confederation, the Framers considered how the colonies had been formed, the kinds of people that inhabited them, how state governments had been operating before and after the Revolution, and how other governments had historically operated. They were thinking, thus, functionally (though without the surveys, statistics and data-mining that we’d today consider thorough investigation).

Why Did the Framers Turn to Functionalism?

In the Federalist No. 10, Madison argued that factionalism would be the greatest danger to a unified state. His purpose was to argue that the government would be most representative of equal citizens as a republic rather than a pure democracy; the reasons he cites for this help to articulate why the authors of the Constitution diverged from the Declaration of Independence’s by excluding references to a “Creator” or “Natural God.” The colonies were first populated by those fleeing religious persecution, but this eventually included many different faith groups (though basically all Christians), and led to certain colonies being characterized and governed according to the faith of its founders or majority population. The religious oppression these groups had fled was to be eliminated from the new American government; strong views held even by the majority of citizens should, in Madison’s opinion, be controlled by structuring government so that certain “inalienable” rights could not be denied even to minority groups.

What the Framers Rejected

Basically, the Framers were confronting the problem of creating a government that had legitimacy to most, or ideally all, of its citizens. They recognized that, given citizens of many different faiths, religious tenets could not form the basis of a common government because those tenets were objects of intransigent disagreement. So they rejected a system, theocracy, that would be unsatisfactory and realized they must articulate some other system of values that the citizenry could hold in common.

How to Gain Legitimacy Without Theocratic Authority

As Kurt Gödel asserted, no self-contained system can be wholly logical. But the Framers had to come up with a system that a geographically and theologically diverse group of people would all submit to. Holmes, in “The Path of the Law,” recognized that “the bad man” will not be guided by morals, only by what the law actually does. So the Framers articulated principles, and eventually (by popular demand) a Bill of Rights, premised not on religious morality but on the idea that we (now everyone and not just white males) are endowed with certain rights that cannot be nullified or abrogated by the rights or actions of others. Performing a contemporary functionalist investigation of whether humans are actually equally endowed with certain inalienable rights generally reveals instead that society best functions when we all enjoy rough parameters of equality. So now we could justify the endowment (or recognition) of these rights by utilitarianism. The Framers would have had no access to data that would reveal such justifications; they relied instead on their educations and common sense. In other words, they relied on a bit of transcendental nonsense to convince each citizen that certain rights were naturally inherent in each of them as well as in each of their countrymen, and if they wanted their own rights to be protected, they had to ensure everyone else’s were too.

Why We Need to Keep Some of the Framer's Nonsense

I’d like to argue that this use of transcendental nonsense, premised on a great deal of essentially functionalist contemplation and debate by the Framers, was essential to eliminating the more harmful transcendental nonsense (or Jerome Frank’s definition of magical thinking) of theocratic governments. The old form of social control was too oppressive for the new, idealistic country, but for a more religiously-neutral system of laws to have any effective social control, it had to gain strength by legitimacy, and creating a nonsense of rights gave every citizen the feeling that government dealt with them as it dealt with every other system. As we’ve discussed extensively in class, many more layers of transcendental nonsense and legal magic have been laid successively on top of this original, functionally designed “inalienable rights” nonsense. While we correctly attempt, in our class and hopefully in our larger lives, to work at tearing down the nonsense that has resulted, to varying degrees, in the perversion of the Framers intent and the unadvised strengthening of particular groups (who gain power using wealth, political power, demagoguery, or that old religious magic), I’m afraid we’ll tear out that nonsense that was essential to us coming together as a united country. There may never be anything we can all agree on as “truth,” and our inherent and intractable subjectivity may keep us divided as to many different aspects of our lives, but the Framers’ nonsense about inalienable rights was functionally derived, can be justified through utilitarianism, and is essential as the basis for a functioning society. Flawed as we are, I think we must accept even that scant common ground.

(978 words, not including headings)

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